Citation Nr: 1721684
Decision Date: 06/14/17 Archive Date: 06/23/17
DOCKET NO. 12-33 465A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for a low back disorder.
2. Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
David R. Seaton, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1973 to September 1976.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
FINDINGS OF FACT
1. A medical nexus does not exist between a current diagnosis of a low back disorder and an in-service incurrence; a low back disorder did not manifest within one year of separation of service; and continuity of symptomology since separation from service has not been established.
2. A medical nexus does not exist between a current diagnosis of bilateral hearing loss and military noise exposure; bilateral hearing loss did not manifest within one year of separation of service; and continuity of symptomology since separation from service has not been established.
CONCLUSIONS OF LAW
1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2015).
2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted.
As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. The Board notes that during the Veteran's personal hearing the Veteran identified VA treatment records from VA Medical Center (VAMC) Houston that had not been associated with the claims file; see Transcript; but a November 2012 statement of the case (SOC) indicated that the RO had contacted VAMC Houston to obtain the identified records; and VAMC Houston indicated that the records did not exist. Accordingly, remanding the case to associate these records with the claims file would be futile.
The Veteran was also provided with a VA audiological examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met.
Service Connection
The Veteran is seeking service connection for a low back disorder and bilateral hearing loss which he believes are the result of his military service. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can also be established through application of statutory presumptions, including for chronic diseases, like organic diseases of the nervous system, if they manifest to a compensable degree within a year of separation from service, or there is continuity of symptomatology since separation of surface. 38 C.F.R. §§ 3.307, 3.309.
Back
At issue is whether the Veteran is entitled to service connection for a low back disorder. Unfortunately, the evidence is not sufficient to grant the Veteran service connection.
The Veteran testified at personal hearing before the Board in February 2017 that he had injured his back during a period of service as a result of picking up heavy objects, and this resulted in him being placed on a physical profile limiting his physical activity. The Veteran indicated that after separating from service he sought treatment for his back at VAMC Houston from 1977 until he moved to Louisiana. The Veteran further indicated that neither the military, nor VAMC Houston gave him a diagnosis for his back, and they simply indicated that he manifested back pain. The Veteran stated that he began to seek treatment for back pain 10 years earlier (approximately 2007). See Transcript, pp. 9-16.
The Veteran's service treatment records are silent for reports of or treatment for a back injury. The Veteran's spine was evaluated as normal during his separation examination.
The record is silent until September 2007 when the Veteran sought treatment for intermittent sharp shooting pain down his left leg that had onset two to three weeks prior to seeking treatment. The Veteran also reported a history of disc degeneration but denied any recent injuries or back pain. A magnetic resonance imaging (MRI) noted an impression of spondylosis of the lower thoracic and lumbar spine.
The weight of the evidence does not demonstrate that the Veteran is entitled to service connection for a back disability. The Veteran clearly has a current back disability. Additionally, the Board finds the Veteran's reports of injuring his back in-service to be credible. Nevertheless, the Veteran's back was evaluated as normal upon separation from service, and there are no other contemporaneous records indicating that the Veteran sought treatment for or reported spinal symptoms. The record is silent until decades after separation of service, and there is no competent medical opinion of record indicating a medical nexus exists between the Veteran's current back disorder and his in-service incurrence.
Moreover, the Veteran testified that following service, he worked in construction for a number of years, suggesting a physically rigorous
As such, the weight of the evidence does not demonstrate a medical nexus between a current disorder and an in-service incurrence, the manifestation of a chronic disability within one year of separation of service, or continuity of symptomatology since separation from service. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such entitlement to service connection for a low back disorder is denied.
Hearing
At issue is whether the Veteran is entitled to service connection for bilateral hearing loss. Unfortunately, the evidence does not demonstrate that the Veteran is entitled to service connection for bilateral hearing loss.
In additional to the general requirements for service connection, there are also specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Veteran testified at personal hearing before the Board in February 2017 that he incurred in-service noise exposure while operating heavy artillery and 50 caliber machine guns. The Veteran claimed that, as a result, he experienced a reduction in hearing in-service. The Veteran stated that after separating from service his hearing continued to get worse, and that beginning 15 years prior (approximately 2002) he began to have difficulty obtaining employment due to his hearing. The Veteran claimed that he was informed by VA that he had hearing loss in 1977 or 1978 (although records showing such were no longer available). The Veteran reported that after separating from service he incurred civilian occupational noise exposure while working construction. The Veteran denied ever receiving hearing aids from VA. See Transcript, pp. 2-9.
The Veteran's service treatment records are silent for reports of or treatment for hearing trouble or ear problems. The Veteran underwent a separation examination in July 1976. His ears were evaluated as normal. The Veteran's pure tone thresholds were measured as follows in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
Null
10
LEFT
10
10
10
Null
10
That is, at separation, conversely to the Veteran's testimony that he was having difficulty hearing, audiometric testing failed to show hearing loss in either ear.
The record is silent for any medical finding of hearing loss until October 2010, when the Veteran underwent a VA examination. The Veteran reported hearing loss that caused difficulty understanding speech especially when watching television and using the telephone. He reported that serving as a gun loader in-service, and he indicated that he incurred military noise exposure from tank gunfire. The Veteran also reported civilian occupational noise exposure in his current position in a factory which he had held since the 1990s. The Veteran denied civilian recreational noise exposure. The examiner diagnosed the Veteran with bilateral hearing loss, but opined that it was less likely than not related to a period of service, because the Veteran's hearing was within normal limits upon separation from service; and his hearing thresholds did not change significantly during a period of service. The Veteran's speech discrimination was 92 percent in the right ear and 90 percent in the left. The Veteran's pure tone thresholds were measured as follows in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
50
55
60
70
LEFT
20
45
80
80
85
The Veteran is not entitled to service connection for bilateral hearing loss. The Veteran clearly meets VA's criteria for bilateral hearing loss, and therefore a current disability has been established. Moreover, the Board finds the Veteran's reports of in-service noise exposure to be credible.
However, military noise exposure alone is not considered to be a disability, rather, when hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure.
In this case, there is no competent medical opinion of record indicating that a medical nexus exists between the Veteran's current bilateral hearing loss and in-service military noise exposure. The Board notes the Veteran's reports that his hearing became worse during his period of service. The Veteran is certainly competent to report his symptoms, but hearing loss for VA purposes must be determined by precise audiometric testing which the Veteran is not competent to perform or interpret, and here, the audiometric testing at separation of service was normal, contradicting the Veteran's assertion that he was experiencing hearing loss at separation. The record is then silent for the onset of hearing loss for decades after separation of service. Finally, the Veteran conceded that he incurred significant civilian occupational noise exposure during the intervening years between separating from service and the earliest audiogram of record demonstrating bilateral hearing loss.
Therefore, the weight of the evidence does not demonstrate that a medical nexus exists between a current disability and an in-service incurrence, the manifestation of bilateral hearing loss within one year of separation of service, or continuity of symptomatology. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for bilateral hearing loss is denied.
ORDER
Service connection for a low back disorder is denied.
Service connection for bilateral hearing loss is denied.
____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs